HOUSE JUDICIARY STANDING COMMITTEE March 8, 1993 1:00 p.m. MEMBERS PRESENT Rep. Brian Porter, Chairman Rep. Jeannette James, Vice-Chair Rep. Gail Phillips Rep. Pete Kott Rep. Jim Nordlund Rep. Joe Green Rep. Cliff Davidson OTHER MEMBERS PRESENT Rep. Eileen MacLean COMMITTEE CALENDAR HB 62: "An Act prohibiting employers from discriminating against individuals who use legal products in a legal manner outside of work." HEARD AND HELD FOR FURTHER CONSIDERATION HB 147: "An Act relating to the disclosure of information by an employer about the job performance of an employee or former employee." HEARD AND HELD FOR FURTHER CONSIDERATION HB 181: "An Act relating to the state's right to appeal in criminal cases; relating to sentence appeals; amending Rule 202 of the Alaska Rules of Appellate Procedure; and providing for an effective date." PASSED OUT WITH A DO PASS RECOMMENDATION (* First public hearing.) WITNESS REGISTER REP. BEN GRUSSENDORF Alaska State Legislature Capitol Building, Room 415 Juneau, Alaska 99801-1182 Phone: 465-3824 Position Statement: Prime Sponsor of HB 62 MIKE MCMULLEN Manager, System Services Division of Personnel/EEO Department of Administration P.O. Box 110201 Juneau, Alaska 99811-0201 Phone: 465-4430 Position Statement: Opposed HB 62; Supported HB 147 RENA BUKOVICH Legislative Aide Rep. Eileen MacLean Alaska State Legislature Capitol Building, Room 507 Juneau, Alaska 99801-1182 Phone: 465-4833 Position Statement: Represented Prime Sponsor of HB 147 JAMIE PARSONS Alaska State Chamber of Commerce 217 Second Street, Suite 201 Juneau, Alaska 99801 Phone: 586-2323 Position Statement: Supported HB 147 RESA JERREL National Federation of Independent Businesses 9159 Skywood Juneau, Alaska 99801 Phone: 789-4278 Position Statement: Supported HB 147 WILLIE ANDERSON National Education Association-Alaska 114 Second Street Juneau, Alaska 99801 Phone: 586-3090 Position Statement: Commented on HB 147 GAYLE HORETSKI Committee Counsel House Judiciary Committee Capitol Building, Room 120 Juneau, Alaska 99801-1182 Phone: 465-6841 Position Statement: Discussed HB 181 DOUG RICKEY Legislative Aide Rep. Ben Grussendorf Alaska State Legislature Capitol Building, Room 415 Juneau, Alaska 99801-1182 Phone: 465-3824 Position Statement: Discussed HB 62 MARGOT KNUTH Assistant Attorney General Criminal Division Department of Law P.O. Box 110300 Juneau, Alaska 99811-0300 Phone: 465-3428 Position Statement: Discussed HB 181 PREVIOUS ACTION BILL: HB 62 SHORT TITLE: EMPLOYEE'S RIGHT TO USE LAWFUL PRODUCTS BILL VERSION: CSHB 62(JUD) SPONSOR(S): REPRESENTATIVE(S) GRUSSENDORF TITLE: "An Act prohibiting employers from discriminating against individuals who use legal products in a legal manner outside of work." JRN-DATE JRN-PG ACTION 01/15/93 74 (H) READ THE FIRST TIME/REFERRAL(S) 01/15/93 74 (H) LABOR & COMMERCE, JUDICIARY 02/16/93 (H) L&C AT 03:00 PM CAPITOL 17 02/16/93 (H) MINUTE(L&C) 02/17/93 358 (H) L&C RPT 4DP 2NR 02/17/93 358 (H) DP: SITTON, MULDER, WILLIAMS, HUDSON 02/17/93 358 (H) NR: PORTER, GREEN 02/17/93 358 (H) -2 ZERO FNS (ADM, LABOR) 2/17/93 03/08/93 (H) JUD AT 01:00 PM CAPITOL 120 BILL: HB 147 SHORT TITLE: EMPLOYER'S LIABILITY FOR REFERENCE INFO BILL VERSION: SPONSOR(S): REPRESENTATIVE(S) MACLEAN,Phillips,Porter TITLE: "An Act relating to the disclosure of information by an employer about the job performance of an employee or former employee." JRN-DATE JRN-PG ACTION 02/10/93 292 (H) READ THE FIRST TIME/REFERRAL(S) 02/10/93 292 (H) L&C, JUDICIARY 02/25/93 (H) L&C AT 03:00 PM CAPITOL 17 02/25/93 (H) MINUTE(L&C) 03/01/93 480 (H) L&C RPT 5DP 03/01/93 481 (H) DP: PORTER, MACKIE, WILLIAMS, GREEN, HUDSON 03/01/93 481 (H) -3 ZERO FNS (ADM, COURT, LAW) 3/1/93 03/01/93 481 (H) REFERRED TO JUDICIARY 03/08/93 (H) JUD AT 01:00 PM CAPITOL 120 BILL: HB 181 SHORT TITLE: APPEALS IN CRIMINAL CASES BILL VERSION: HB 181 AM SPONSOR(S): JUDICIARY TITLE: "An Act relating to the state's right to appeal in criminal cases; relating to sentence appeals; amending Rule 202 of the Alaska Rules of Appellate Procedure; and providing for an effective date." JRN-DATE JRN-PG ACTION 02/25/93 455 (H) READ THE FIRST TIME/REFERRAL(S) 02/25/93 456 (H) JUDICIARY, FINANCE 03/08/93 (H) JUD AT 01:00 PM CAPITOL 120 ACTION NARRATIVE TAPE 93-28, SIDE A Number 000 The House Judiciary Standing Committee meeting was called to order at 1:12 p.m. on March 8, 1993. A quorum was present. CHAIRMAN PORTER announced that three bills were before the committee: HB 62, HB 147 and HB 181. He noted that the committee would address HB 62 first. HB 62 - EMPLOYEE'S RIGHT TO USE LAWFUL PRODUCTS Number 027 REP. BEN GRUSSENDORF, PRIME SPONSOR OF HB 62, commented that some people were so health-conscious that they wanted to carry those attitudes over into the homes of their employees. He noted that he never thought that he would see the day that a bill like HB 62 would be necessary. He said HB 62 provided that an employee, in the privacy of her or his own home, or in any other place where they were not associated with their employer, could use any lawful products that they desired. REP. GRUSSENDORF commented that the bill specifically provided that if use of the lawful products affected an employee's job performance, that was grounds for dismissal. He noted that the "bottle to throttle" policy of some airlines, in which pilots were not to drink within 12 hours of flying, was reasonable. He noted that he had heard a number of complaints and concerns about company policies that went too far. REP. GRUSSENDORF explained that nothing in HB 62 ran counter to public health. He said that religious corporations were exempt from the provisions of HB 62. In summary, he said that HB 62 was a very straightforward, simple piece of legislation which was unfortunately necessary. Number 114 REP. PHILLIPS asked Rep. Grussendorf why he felt it was necessary for the legislature to pass HB 62. Number 121 REP. GRUSSENDORF replied that some companies had policies which discriminated against employees who used lawful products. He noted that HB 62 would not prohibit companies from charging employees who used certain lawful products higher rates for health insurance. Number 157 REP. PHILLIPS asked Rep. Grussendorf if HB 62 would impact an employee who lived in a work camp. Number 170 REP. GRUSSENDORF responded that HB 62 addressed "places other than the work site or premise of the employer." He said that, in his interpretation, the existing rules in work camps would not be changed by HB 62. Number 191 REP. PHILLIPS indicated her desire to make sure that Rep. Grussendorf's interpretation was correct. Number 200 REP. JAMES asked Rep. Grussendorf if he had ever been an employer. Number 203 REP. GRUSSENDORF said he had been a crew chief, but not a true employer. Number 212 REP. JAMES commented that she was opposed to the unfair treatment of any person for any reason. However, she said that Rep. Grussendorf, as a non-employer, might not be able to understand the rationale behind companies being able to choose who they hired. She expressed her concern that government should not take all of an employer's options away with regard to who that employer would hire and fire. Number 226 REP. GRUSSENDORF commented that it would be very difficult to refuse to hire someone based on the use of lawful products. He noted his concern about the treatment of employees after they had been hired. Number 236 REP. JAMES stated that the bill said "may not refuse to hire." She asked about an employer who owned a business which counseled people to quit smoking. She asked if that sort of business should be able to refuse to hire someone who smoked. Number 245 REP. GRUSSENDORF cited exemptions included in HB 62, including religious corporations, associations, educational institutions, and societies. He commented that the example that Rep. James had offered would probably be considered an educational institution. Number 260 REP. GRUSSENDORF commented that an amendment being offered by the Department of Administration would gut HB 62. Number 292 MIKE MCMULLEN, of the DEPARTMENT OF ADMINISTRATION, testified in opposition to HB 62. He offered an amendment to the bill, which he felt would adequately address the department's concerns with the bill. He said that currently, the state and all other employers could take disciplinary action against an employee for off-duty conduct when the employer could demonstrate a close relationship between that conduct and the employee's job performance. Number 320 MR. MCMULLEN said that employers could establish reasonable rules for off-duty conduct and enforce them, as long as they could demonstrate the aforementioned close relationship. He noted that some employees could not be separated from their employment identity. He mentioned that if the head of the state's Office of Alcoholism and Drug Abuse were to habitually drink excessively and publicly while off-duty, the state would want to be able to take disciplinary action. Number 330 MR. MCMULLEN stated that HB 62 would cause the state to give up the ability that it now enjoyed to take disciplinary action against employees based on their off-duty conduct. He noted that his amendment would serve as an exemption to provisions of HB 62. Number 357 REP. PHILLIPS asked if HB 62 pertained to lawful products only or also to lawful activities. As a hypothetical example, she cited a state employee who worked for a division that worked with children who moonlighted as a stripper. Number 387 REP. DAVIDSON asked if HB 62 was before the committee. CHAIRMAN PORTER indicated that HB 62 was indeed before the committee. Number 400 REP. DAVIDSON made a motion to move HB 62 out of the Judiciary Committee with individual recommendations. There was objection. REP. DAVIDSON commented that modern American society was going after individual rights more and more. He said if employers were going to try to dictate to employees what lawful products they could and could not consume in the privacy of their own homes, he feared for future generations. For that reason, he said, he supported moving HB 62 out of committee. He noted that he had been an employer in the past. He said he agreed with HB 62's sponsor that the Department of Administration's amendment would gut the bill. Number 440 REP. JAMES indicated her support for the intentions of HB 62. She expressed her concern that when government tried to legislate every small situation that occurred, larger problems were created than those that government had attempted to solve. She stated that more and more restrictions were being placed on employers. She said she would like to see the elements of HB 62 accomplished without legislation. She agreed that a problem existed, but said it was her opinion that HB 62 would create more problems than it solved. REP. JAMES expressed her opinion that an employer did not have the right to tell an employee what to do or not do on that employee's off-duty time. She stated that HB 62 would be a roadblock to jobs, however. Number 495 CHAIRMAN PORTER commented that he did not favor the Department of Administration's amendment. He said it was a close call for him, but he would support moving HB 62 out of committee. Number 534 REP. DAVIDSON offered a hypothetical example of a legislative staffer who took RU486, if lawful, although her boss was opposed to abortion. Could she be fired for that action, he asked? He questioned when an individual's rights kicked in. Number 577 REP. JAMES noted that labor laws were already very protective of employees, and HB 62 was therefore redundant. She reiterated her concern that legislation passed to remedy one small problem often resulted in the creation of more, larger problems. She said she was not so concerned with HB 62's impact on who an employer fired, but was concerned with its impacts on an employer's ability to hire whomever she or he wanted to hire. Number 616 REP. PHILLIPS indicated her desire to tighten up the bill's language regarding work sites. CHAIRMAN PORTER announced that discussion of HB 62 would be suspended until Rep. Phillips' amendments could be prepared and distributed to the committee. He announced that the committee would take up HB 147 next. REP. KOTT moved to table the motion before the committee, to move out HB 62, until Rep. Phillips' amendment was officially offered. No objection was heard, so the motion was tabled. HB 147 - EMPLOYER'S LIABILITY FOR REFERENCE INFO Number 635 RENA BUKOVICH, LEGISLATIVE AIDE TO REP. EILEEN MACLEAN, PRIME SPONSOR OF HB 147, explained the bill. She stated that the bill would add a new section to the Code of Civil Procedure relating to job references, stating that an employer was presumed to be acting in good faith unless it was shown that a reference was knowingly false, deliberately misleading, given with malicious purpose, or violated the employee's civil rights. Number 650 MS. BUKOVICH commented that HB 147 was needed to encourage the exchange of information between a prospective employee and employer. She said the courts were overburdened with libel and slander claims based on negative job interviews and unfavorable employment references. She stated that many employers had stopped giving employment references entirely out of fear of lawsuits. She noted that passage of HB 147 was the number one priority of the Alaska State Chamber of Commerce. She added that it was modeled after a Florida law which passed without opposition. She noted that HB 147 was identical to HB 441, which passed the House unanimously the year before and died in the Senate Rules Committee. Number 660 REP. DAVIDSON asked Ms. Bukovich if the sponsor concurred with the amendment he was offering to HB 147. MS. BUKOVICH noted that Rep. MacLean did not oppose Rep. Davidson's amendment. Number 667 REP. KOTT asked Ms. Bukovich what the definition of "malicious purpose" was. Number 670 MS. BUKOVICH stated that "malicious purpose" meant acting with ill-will or with the intent to harm another individual. Number 685 JAMIE PARSONS, PRESIDENT OF THE ALASKA STATE CHAMBER OF COMMERCE (ASCC), testified in support of HB 147. He said the bill would protect employers who received inquiries about the job performance of employees or former employees. He stated that under the bill's provisions an employer who provided reference information to another employer would be presumed to be acting in good faith. Additionally, unless the reference could be shown to be knowingly false, deliberately misleading, and showing a lack of good faith, the employer could not be held liable for the disclosure or the consequences of the disclosure. Number 700 MR. PARSONS noted that there was a relatively small applicant base in Alaska, and it was therefore imperative that employers be able to share information in good faith. He said sharing information entailed a risk that many employers could not afford to take. He reiterated that passage of HB 147 was the number one priority of ASCC. Number 717 REP. JAMES asked when an employee's rights came into play under HB 147's provisions. Number 727 MR. PARSONS stated that as a small business owner, he treated the issue of employment reference disclosures seriously. He said that under the Senate version of the bill, employees would have access to written references. Number 735 REP. JAMES questioned the need for HB 147. Number 739 MR. PARSONS commented that there were many instances in which employers hired people "blindly" because other employers were afraid to disclose negative information about an employee. Number 749 REP. JAMES asked if information did not get carried over because prospective employers did not ask questions, or because former or current employers did not provide the information. Number 750 MR. PARSONS replied that previous or current employers, because of the risks involved, did not want to disclose much information about an employee. Number 760 REP. JAMES said she had not been aware that the problem existed. She said that many people called her for references and she disclosed information about people who had worked for her. Number 763 REP. KOTT asked if the Department of Law was going to testify on HB 147. He wondered if the situation addressed by HB 147 was already covered by "qualified privilege" laws. Number 768 CHAIRMAN PORTER noted that no representative of the Department of Law was available to testify on HB 147. He noted that as both a public and private-sector employer, he had been advised to disclose very little information about employees due to the risk of liability involved. Number 778 REP. JAMES commented that labor laws were fairly strict. TAPE 93-28, SIDE B Number 000 RESA JERREL, representing the NATIONAL FEDERATION OF INDEPENDENT BUSINESSES (NFIB), testified in support of HB 147. She stated that on the 1993 NFIB member ballot, 83 percent of respondents had supported this type of legislation. Number 020 MS. JERREL noted that in her former job she had been advised by an attorney to only verify her secretary's dates of employment, job title, and salary. She said that if she could have, she would have given her secretary a poor reference. She noted the growing nationwide problem of employers being sued by current and former employees over negative reference information. Number 030 MS. JERREL noted that one of NFIB's members had said that she would love to be able to get factual information on prospective employees because of a high turnover rate and problems with employees stealing from the till. Number 053 REP. DAVIDSON asked Ms. Jerrel to further explain the situation involving the NFIB member further. Number 062 MS. JERREL replied that the member said she spent a great deal of time hiring and firing people who abused drugs and alcohol and stole. The member had added that if she could get factual information from former and current employers, she would save a lot of time and aggravation. Number 070 REP. DAVIDSON asked why factual information was unavailable currently. MS. JERREL replied that, in the case of her former secretary, she assumed that the secretary's former employers had been advised not to disclose factual information. Number 075 REP. DAVIDSON asked Ms. Jerrel if she had ever confirmed that assumption. MS. JERREL responded that she had not. Number 082 MIKE MCMULLEN, of the DEPARTMENT OF ADMINISTRATION, testified in support of HB 147. He said that as a prospective employer, the state would like to know more about persons whom it was considering hiring. He noted that currently, the state encountered former employers who were reluctant to reveal much about employees. He said HB 147 would give employers more freedom to disclose information about former employees. He said HB 147 also would allow the state, as an employer, more freedom to disclose information about former employees. Number 120 REP. DAVIDSON asked if he would agree that HB 147 would immunize employers acting in good faith from civil action from former employees for disclosing information regarding a former employee's job performance. MR. MCMULLEN said he agreed with that statement. Number 130 REP. DAVIDSON asked Mr. McMullen if he felt that it would be difficult to prove that an employer was acting in bad faith. Number 138 MR. MCMULLEN commented that the appropriate place to address that issue was in court. He noted that under the bill a former employee would have a case against a former employer if the employer had given out incorrect information. Number 153 REP. DAVIDSON asked whether Mr. McMullen felt that HB 147 would help or hinder an employee's attempt to prove that an employer had acted in bad faith. Number 166 MR. MCMULLEN replied that he did not know that HB 147 would make any difference. Number 170 REP. DAVIDSON asked Mr. McMullen if he believed that HB 147 would put an employee at a disadvantage, in the event that the employee was falsely given a bad reference. MR. MCMULLEN expressed his opinion that HB 147 would not affect an employee's attempts to prove that an employer had acted in bad faith. REP. DAVIDSON gave a hypothetical example in which Mr. McMullen had been fired from a job in Alaska and went to Florida to look for another job. He asked Mr. McMullen if a former supervisor gave him a false bad evaluation, would HB 147 make it easier for him to prove that the employer had acted in bad faith? MR. MCMULLEN reiterated his opinion that his hypothetical case against his former employer would remain the same, regardless of whether or not HB 147 passed. Number 194 REP. KOTT commented on the agreement that had been reached between the Anchorage School Board and former District Superintendent Thomas O'Rourke. He said part of that agreement was that the school board would not convey any negative information to prospective employers of Mr. O'Rourke's. Number 202 CHAIRMAN PORTER noted that legal agreements could always be reached between an employer and an employee, and such agreements would not be prohibited by HB 147. Number 212 REP. DAVIDSON stated that such agreements would result in prospective employers not being protected against hiring bad employees, despite passage of HB 147. Number 220 WILLIE ANDERSON, of the NATIONAL EDUCATION ASSOCIATION- ALASKA (NEA-Alaska), expressed his organization's concerns about HB 147. He questioned how an employee could prove that an employer had given out false information. Number 249 REP. PHILLIPS said she would have assumed that NEA-Alaska would have taken the opposite stand on HB 147 than it had. She indicated her surprise at Mr. Anderson's comments on the bill. She asked, in the case of an elementary school hiring a new teacher, would it not be to the school's advantage to know of a teacher's background of sex offenses? Number 262 MR. ANDERSON agreed with Rep. Phillips. He clarified NEA- Alaska's stand that they wanted to ensure that information passed on to a prospective employer was factual. He said that, based on some comments that had been made in today's hearing, there was a danger of non-factual allegations being conveyed to a prospective employer. Number 275 CHAIRMAN PORTER asked Mr. Anderson whether or not NEA-Alaska supported passage of HB 147. Number 280 MR. ANDERSON noted that if HB 147 did not pass, the current practice of a former employer conveying limited information about an employee likely would continue. He said employers now commonly passed on information about employees, for which they had documentation. If an employer did not have documentation, employers generally did not pass on information because of fears of liability. Number 293 CHAIRMAN PORTER asked, if the employers to whom Mr. Anderson had referred had been advised to stop disclosing certain information, would they be likely to alter their practices? MR. ANDERSON replied that, in his opinion, they would likely alter their practices. Number 302 REP. GREEN commented that if HB 147 were to pass, and an employer received several positive references and one negative reference for a prospective employee, that would indicate that a personality conflict existed between the prospective employee and his or her one negative reference. He said that regardless of whether HB 147 passed, it was probably possible to take legal action against an employer for libel or slander. REP. GREEN noted that if he were an employer, he would want to know if a prospective employee had performed poorly on a previous job. He expressed his belief that HB 147 would be of great advantage to employers, particularly school districts. Number 331 MR. ANDERSON stated that he agreed with Rep. Green. He said NEA-Alaska supported an employer's divulgence of factual information, positive or negative. However, they were concerned that unproven allegations against an employee might also be transmitted to a prospective employer. Number 354 REP. DAVIDSON asked Mr. Anderson if he were aware of any instances of Alaska school employers being sued over employment references. Number 360 MR. ANDERSON said he had no knowledge of any such instance. Number 367 REP. DAVIDSON asked Mr. Anderson if he knew of any examples in Alaska in which teachers' employment records had been falsified. Number 370 MR. ANDERSON replied that no Alaska school district had been known to falsify a teacher's personnel record. However, he said individuals had put down false information on job applications and had been fired when the misinformation came to light. Number 380 REP. DAVIDSON questioned whether any employer had ever been sued for passing on accurate factual information to another employer. Number 386 REP. JAMES noted her belief that Alaska already had a law which protected people who stated their suspicions that another person engaged in sexual abuse. Number 395 MR. ANDERSON commented that public employee school teachers in Alaska were required to report suspicions of child abuse. Number 403 REP. JAMES asked, if a teacher was suspected of committing child sexual abuse, would that information be in a teacher's record? Number 408 MR. ANDERSON responded that a teacher's employer would be required to report such suspicions to the Division of Family and Youth Services (DFYS). REP. JAMES noted that this information might not then be passed on to a teacher's future employer. MR. ANDERSON indicated that it would depend on the outcome of DFYS' investigation. He said that a suspicion did not necessarily have basis in fact. He noted his concern that an employer might tell another employer that an employee was investigated for child abuse and not tell the rest of the story: that an investigation turned up no evidence of such conduct. Number 427 REP. NORDLUND said he could not imagine a situation in which information on a known child abuser was not passed on to a prospective employer. Number 431 REP. PHILLIPS noted that a situation like the one Rep. Nordlund described happened just the year before. REP. NORDLUND asked if passage of HB 147 would help to lessen the occurrence of such situations. REP. PHILLIPS commented on a situation in an Anchorage high school. The outcome of that situation, she noted, was an agreement that nothing about an alleged sexual contact with a student would appear in the teacher's record. Number 438 REP. NORDLUND noted that the individual about whom Rep. Phillips was speaking had not been convicted of a crime. He stated that an allegation, later proven to be true, had been made. Number 445 REP. PHILLIPS stated that when the teacher was no longer hired by the school district, an agreement was made whereby the teacher was not prohibited from taking a job in another school district. REP. NORDLUND stated that there could be situations in which a person was falsely accused. An employer who falsely believed accusations to be true could pass on that information to a prospective employer, who would then discriminate against the employee. Number 453 REP. DAVIDSON explained his proposed amendment, which would insert on page 1, line 12, after the word "given": "negligently, recklessly, or". He said that adding this language was the least that the committee could do to protect against individuals who would maliciously go after other individuals. He noted that the sponsor of HB 147 did not object to his amendment. He moved the amendment. Number 474 GAYLE HORETSKI, COMMITTEE COUNSEL TO THE HOUSE JUDICIARY COMMITTEE, stated that it appeared that the language in HB 147 was taken from a Florida law. She called the members' attention to page 1, lines 10-14. She said the bill was awkwardly written so as to indicate that information had a "culpable mental state." She suggested rewriting the bill so as to indicate that the mental states referred to in the bill belonged to the employer. Number 504 CHAIRMAN PORTER suggested that HB 147 be held in committee, and a committee substitute drafted to incorporate Rep. Davidson's amendment and to clarify the "mental state" language. Hearing no objection, it was so ordered. Number 513 REP. DAVIDSON asked that the committee be given more information on lawsuits that made HB 147 necessary in the first place. Also, he said he would like to know if Alaska had a complementary law which penalized employers for giving false reference information. Number 529 CHAIRMAN PORTER indicated that there was a wealth of information from representatives of employers that showed that HB 147 was necessary. Number 545 REP. DAVIDSON said he understood that a problem existed. However, he said that he wanted to know where it had been demonstrated, through the legal process, that a bill like HB 147 was needed. Number 551 CHAIRMAN PORTER announced that HB 147 would be brought before the committee again at the next available meeting. HB 62 - EMPLOYEE'S RIGHT TO USE LAWFUL PRODUCTS CHAIRMAN PORTER stated that the committee would again take up HB 62. He called the committee members' attention to Rep. Phillips' proposed amendment. REP. PHILLIPS stated that the amendment would go on page 2, after line 20. She explained that it would clarify the definitions of a work site and the premises of an employer. She moved the amendment, but said that she would rather not act on the bill itself until she had heard from the sponsor of HB 62. REP. DAVIDSON objected for purposes of discussion. He said that perhaps Mr. Doug Rickey, staff to the sponsor of HB 62, could address the amendment. CHAIRMAN PORTER commented that he did not believe that the sponsor would object to Rep. Phillips' amendment. Number 578 DOUG RICKEY, LEGISLATIVE AIDE TO REP. BEN GRUSSENDORF, said that the only possible problem with the amendment might be that the definition of "work site" might not be what Rep. Phillips had intended. Number 594 REP. PHILLIPS stated that the definition reflected her intention exactly. She said she was referring to mining camps, logging camps, and North Slope employment where everyone lived in one facility. Number 600 REP. DAVIDSON stated that his understanding was that if an individual lived in housing in Juneau, owned by the Greens Creek Mine, that person could not drink in his or her own home if it were against the company's policy. Number 609 REP. PHILLIPS withdrew her motion to move the amendment. She said she would discuss her amendment with the bill's sponsor. She asked that Ms. Horetski work on the amendment. Number 615 CHAIRMAN PORTER commented that it was his impression that if he were an employer, and provided housing for his employees, whether on the work site or not, he could set rules for behavior in the housing. Number 629 REP. KOTT asked Mr. Rickey if he knew of specific cases that demonstrated the need for HB 62. Number 640 MR. RICKEY noted that several cases had received national television coverage. He called the members' attention to an editorial in their packets which cited a New York Times report of 6,000 companies which refused to hire smokers. Number 645 REP. KOTT asked if there was a problem in Alaska that merited passage of HB 62. Number 654 MR. RICKEY replied that HB 62 was prophylactic in nature, intended to prevent problems in other areas of the nation from appearing in Alaska. TAPE 93-29, SIDE A Number 003 CHAIRMAN PORTER announced that HB 62 would be held to a time uncertain. HB 181 - APPEALS IN CRIMINAL CASES CHAIRMAN PORTER stated that HB 181 was the next item of business before the committee. Number 020 MARGOT KNUTH, ASSISTANT ATTORNEY GENERAL, stated that HB 181 would allow the state the same right to appeal from adverse decisions in criminal cases that the federal government had. She said that this right would stop at the point of double jeopardy. She noted that if a criminal defendant was acquitted, that was the end of the case. Number 030 MS. KNUTH said, currently, the state was allowed to obtain review from the Court of Appeals on adverse evidentiary rulings by filing a "petition for review." She noted that 80 to 90 percent of those petitions were granted. She said the current procedure was two-fold and inefficient. She commented that HB 181 would allow the state to "appeal" those evidentiary rulings. She noted that only about twelve petitions for review were filed statewide per year. MS. KNUTH said the state wanted to be able to use the same procedure that defendants used when they were on the losing end of similar rulings. She noted that HB 181 was more of a cost-saving measure than a substantial change in policy for the state. Number 107 REP. PHILLIPS asked if other states had laws similar to HB 181. Number 111 MS. KNUTH replied that she had not researched the laws of other states, but some states probably have laws which restricted the state's right to appeal beyond the requirements of the federal constitution. Number 121 REP. DAVIDSON asked Ms. Knuth if she had said that HB 181 would only impact about twelve cases per year. Number 125 MS. KNUTH indicated that Rep. Davidson was correct. She said the workload of those twelve cases constituted half of one appellate attorney's workload in a year. Number 145 REP. DAVIDSON commented that it seemed as if HB 181 was allowing the state the same opportunities that an individual defendant had. He said he liked the idea of giving an individual some advantage over the resources of the state. Number 161 CHAIRMAN PORTER noted that HB 181 did not change the burden of proof, nor any of the other "heavy-duty" requirements that the state had in a criminal case. He commented that HB 181 would give the state the same privilege that defendants have. He stated that defendants have 30 days from the date of a decision in which to file an appeal. However, under existing law, the state only has ten days. Additionally, he said, the state has several other hoops to jump through. Number 161 REP. DAVIDSON asked if it was possible for the state to receive an extension of the ten-day limit. Number 195 MS. KNUTH responded that a defendant's appeal could be accomplished with one sheet of paper which stated an individual's intention to broach certain issues. However, she said, the state's petition for review required an entire analysis of the issues. MS. KNUTH noted that either side could file a petition for review in the middle of a criminal trial. But, she said, HB 181 would not affect those mid-trial petitions. She noted that the bill would affect evidentiary rulings which resulted in the dismissal of a case. MS. KNUTH said HB 181 would change the amount of energy required to get certain issues addressed by the appellate courts. Number 255 REP. DAVIDSON said he was not convinced that hurried justice was fair justice. He said he was not certain that HB 181 was necessary. Number 266 REP. NORDLUND asked Ms. Knuth to comment on the twelve rulings regarding which petitions for review were filed in 1992. MS. KNUTH replied that ten petitions for review were filed, eight of which were granted, and two of which were denied. Two of the rulings were not petitioned. Number 286 REP. NORDLUND asked why HB 181 did not result in a fiscal impact to the state. MS. KNUTH explained that the person who prepared the fiscal note probably addressed the issue of whether or not the bill would result in more appeals. Because it would not result in more appeals, the preparer of the fiscal note probably assumed that it would not have a fiscal impact, she said. She stated that the fiscal note did not take into consideration the increased efficiency HB 181 would provide. Number 324 CHAIRMAN PORTER called the members' attention to a memorandum in their packets from CYNTHIA HORA of the DEPARTMENT OF LAW. He said the memorandum indicated that HB 181 would result in a smoother, more timely process for petitioning. He said he was under the impression that the Department of Law sometimes did not file petitions, simply due to a lack of time. However, with HB 181, time would be saved, and therefore more cases could be appealed. That circumstance would probably result in a change in the type of work to be performed, but with a zero fiscal impact to the state. Number 345 MS. HORETSKI commented that HB 181 was identical to the previous year's HB 303, which unanimously passed the House before dying in the Senate Rules Committee. She noted that up until a 1983 Alaska Supreme Court decision, the language of Alaska's law was interpreted to be the same as federal law on that issue. Now, Alaska's law was interpreted to be more narrow. Number 373 REP. DAVIDSON asked Ms. Knuth how a decision was made regarding whether or not an appeal violated double jeopardy principles. Number 379 MS. KNUTH responded that judges made that decision through the adversarial process. Number 404 CHAIRMAN PORTER stated that varying states said that double jeopardy attached at varying points. He noted that HB 181 would only apply to those motions that occurred prior to a trial or dismissal. Number 418 MS. KNUTH gave an example of a man who had been stopped for a traffic violation and threw bags of cocaine out the window of his car. In that case, she said, the judge suppressed the evidence because he ruled that the traffic stop was illegal. The state wanted to appeal that ruling, she noted, because without that evidence the state had no case against the man. She said that a petition for review was now the state's way of asking the court to review its ruling. If HB 181 were to be enacted, she said, the state could file an appeal on the dismissal of the case that followed that ruling. Number 448 REP. DAVIDSON commented that Ms. Knuth's example showed a clear need for HB 181. He asked her to provide an example in which the need was less clear, in which an individual lost a certain advantage over the state. Number 455 MS. KNUTH cited an example of a presumptive sentencing situation in which it was questioned whether a defendant's prior convictions should be taken into account. If the court ruled that the prior convictions should not be considered, the defendant would not receive a presumptive sentence. A petition for review by the state might or might not be granted, she said. If, however, the state had the right to appeal a ruling, the state would definitely be able to address that issue with the Court of Appeals. Number 482 CHAIRMAN PORTER noted that HB 181 did not tamper with the state's requirement to prove its case beyond a reasonable doubt. He said he saw the bill as a means to save the state time. Number 495 REP. DAVIDSON commented that the committee had only heard one side of the issue. He said he would like to hear from the Public Defender Agency and criminal attorneys. Number 504 CHAIRMAN PORTER noted that the Public Defender Agency and the Office of Public Advocacy had been notified that HB 181 was before the committee and had elected not to testify. Number 511 REP. PHILLIPS made a motion to pass HB 181 out of committee with individual recommendations and a zero fiscal note. REP. DAVIDSON objected. CHAIRMAN PORTER called for a roll call vote. Representatives Phillips, Green, Kott, Nordlund, James, and Porter voted "yea." Representative Davidson voted "nay." And so, the motion carried. CHAIRMAN PORTER noted that the committee would reschedule HB 62 and HB 147 as soon as possible. Number 532 REP. JAMES asked if the Legislative Affairs Legal Services Division had reviewed HB 147 for compliance with federal civil rights laws. Number 537 MS. HORETSKI responded that she was unaware of any legal analysis of HB 147. Number 540 REP. JAMES requested that a legal analysis be performed. CHAIRMAN PORTER adjourned the meeting at 3:01 p.m.